DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim status
Claims 1-14 filed 07/24/2024 are pending in the application and are hereby examined on the merits.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-5, 7-12 and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nakamura US Patent Application Publication No. 2017/0183613 A1 (hereinafter referred to as Nakamura).
Regarding claims 1-5, 7-12 and 14, Nakamura teaches a method of modifying a flavor of an alcoholic beverage such as shochu (0057), the method comprising introducing to the alcoholic beverage an emulsified flavor composition that comprises an oil-soluble component containing a flavor (0009-0014; 0054-0057), wherein the oil-soluble component containing a flavor can be an ether such as vanillyl butyl ether (0019; 0026). vanillyl butyl ether reads on formula (I) where R1 is methyl and R2 is butyl, and shochu is a distilled spirit known to have an ethanol content of at least 25% ABV, and is also known to contain congeners (e.g., taste or aroma compounds) as a result of fermentation.
Claims 8-12 and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by R. Ter Heide, “Concentration and identification of trace constituents in alcoholic beverages”, Anal. Foods Beverages, [Proc. Symp.], 1978, pages 249-81 (hereinafter referred to as Heide).
Regarding claims 8-12 and 14, Heide teaches a beverage composition comprising a distilled spirit (e.g., Cognac) and a vanillic ether compound that meets formula (I) as recited in instant claims 8-11 (e.g., ethyl vanillyl ether) (Abstract; Table 1 on page 261, under “PHENOLS”). Cognac is known to contain more than 20% ethanol ABV, and contain congeners.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 6 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Nakamura as applied to claims 1 and 8 above.
Regarding claims 6 and 13, Nakamura teaches that the emulsified flavor composition comprises 0.1-10% flavor component (0033), and that the alcoholic beverage comprises 0.01-0.5% by weight of the emulsified flavor composition (0058). As such, the alcoholic beverage contains 0.00001-0.05% or 0.1-500 ppm a flavor component such as vanillyl butyl ether. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Conclusion
Pertinent art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure
-MacNamara, “Advances in the ageing Chemistry of Distilled Spirits Maturated in oak barrel”, LC-GC Europe, 2011, 24(9), pages 448-466, which teaches whiskey matured in oak barrels contains vanillyl ethyl ether and vanillyl butyl ether.
-Aida US Patent No. 8,071,531 B2, which teaches including a flavor and fragrant composition that comprises vanillyl ethyl ether or vanillyl propyl ether in a beverage such as fruit spirit.
-Harvey US Patent Application Publication No. 2007/0148103 A1, which teaches adding a heating or warming composition that comprises a cooling agent and a warming agent such as vanillyl alkyl (e.g., ethyl, propyl, or butyl) ether to a beverage such as an alcoholic beverage so as to provide a heating sensation to the beverage.
-Xie CN109481659 A, which teaches including vanillyl butyl ether in Baijiu.
-Simon, “Characterization of Volatile Constituents in Commercial Oak Wood Chips”, J. Agric. Food Chem. 2010, 58, pages 9587-9596, which teaches that oak wood contains ethyl vanillyl ether.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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